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James Folsom v. United States of America

October 7, 2011

JAMES FOLSOM,
PETITIONER,
v.
UNITED STATES OF AMERICA,
RESPONDENT.



The opinion of the court was delivered by: John A. Houston United States District Judge

ORDER DENYING MOTION AND DENYING CERTIFICATE OF APPEALABILITY [28 U.S.C. § 2255]

INTRODUCTION

Petitioner James Folsom ("Petitioner"), proceeding pro se, filed a motion challenging his conviction under 28 U.S.C. § 2255. After a thorough review of the record and the motion, and for the reasons set forth below, this Court denies and summarily dismisses Petitioner's motion.

BACKGROUND

On February 17, 2009, Petitioner was found guilty by a jury of Counts 1 through 26 of the superseding indictment, which charged Petitioner with one count of conspiracy in violation of 18 U.S.C. section 371, ten counts of introduction of an adulterated device into interstate commerce in violation of 21 U.S.C. sections 331(a), 333(a)(2) and 351(e) and (f), ten counts of introduction of a misbranded device into interstate commerce in violation of 21 U.S.C. section 331(a), 333(a)(2), 352(o), 352(b) and 360(j) and (k), five counts of failure to register a device establishment in violation of 21 U.S.C. sections 331(p), 333(a)(2) and 360, and with commission of an offense while on pretrial release in violation of 18 U.S.C. section 3147. On February 8, 2010, this Court sentenced Petitioner to thirty -nine months in custody on Counts 1 through 6, 9 through 13 and 16 through 19 with three years of supervised release to follow, and twelve months custody on Count 7, 8, 14, 15, and 20 through 26 with one year of supervised release to follow. The Court ordered the 12 month sentence consecutive to the thirty-nine month sentence and the one year of supervised release concurrent to the three year supervised release term.

Petitioner appealed his conviction. The Ninth Circuit rejected Petitioner's claims and affirmed the conviction. Petitioner filed the instant motion to correct or modify his sentence pursuant to 28 U.S.C. § 2255 on August 3, 2011. (Doc. No. 136).

LEGAL STANDARD

A section 2255 motion may be brought to vacate, set aside or correct a federal sentence on the following grounds: (1) the sentence was imposed in violation of the Constitution or laws of the United States, (2) the court lacked jurisdiction to impose such sentence, (3) the sentence was in excess of the maximum authorized by law, or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255.A district court must summarily dismiss a section 2255 application "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts.

DISCUSSION

I. Petitioner's Motion

Petitioner seeks an order vacating his conviction on the following grounds: (1) the Court lacked jurisdiction because Title 18 of the United States Code is void, (2) there was no criminal complaint supported by probable cause in the proceeding in violation of his due process rights, (3) the Court is not an Article III judge, (4) the Court is selling conviction bonds in violation of various constitutional rights, (5) Rule 6 of the Federal Rules of Criminal Procedure permit the government to hold grand jury records in violation of the separation of powers doctrine, (6) the government concealed evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), and (7) the government concealed classified documents in violation of the Fifth Amendment.

A. Jurisdiction

Petitioner argues this Court lacked jurisdiction*fn1 over his criminal proceeding because Title 18 of the United States Code was not properly enacted due to quorum and voting issues and therefore is void. Courts have determined this argument frivolous and this Court agrees. See United States v. Collins, 510 F.3d 697, 698 (7th Cir. 2007); United States v. Lewis, 2010 WL 3447702 (N.D.Cal.); United States v. Chellemi, 2007 WL 2995726 (D.Ariz.), see also U.S. Civil Service Commission ...


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